1 Personal identification information is provided in Appendix A.

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DISTRICT OF COLUMBIAOFFICE OF THE STATE SUPERINTENDENT OF EDUCATION

Office of Dispute Resolution810 First Street, NE, 2nd Floor

Washington, DC 20002

PETITIONER, on behalf of STUDENT,1

Petitioner,

v.

DISTRICT OF COLUMBIA PUBLIC SCHOOLS,

Respondent.

Date Issued: August 16, 2017

Hearing Officer: Peter B. Vaden

Case No: 2017-0152

Hearing Date: July 31 - August 1, 2017

Office of Dispute Resolution, Room 2006Washington, D.C.

HEARING OFFICER DETERMINATION

INTRODUCTION AND PROCEDURAL HISTORY

This matter came to be heard upon the Administrative Due Process Complaint

Notice filed by Petitioner (the Petitioner or MOTHER), under the Individuals with

Disabilities Education Act, as amended (the IDEA), 20 U.S.C. § 1400, et seq., and Title

5-E, Chapter 5-E30 of the District of Columbia Municipal Regulations (“D.C. Regs.”). In

her due process complaint, Petitioner alleges that Respondent District of Columbia

Public Schools (DCPS) denied Student a free appropriate public education (FAPE) by

not timely determining eligible for special education, by failing to comprehensively

evaluate in all areas of suspected disabilities, by not providing appropriate IEPs and

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by violating the IDEA’s and the District of Columbia requirements concerning access to

education records and IEP meeting procedures.

Student, an AGE youth, is a resident of the District of Columbia. Petitioner’s Due

Process Complaint, filed on June 2, 2017, named DCPS as respondent. The undersigned

hearing officer was appointed on June 5, 2017. On June 15, 2017, I convened a

telephone prehearing conference with counsel to discuss the hearing date, issues to be

determined and other matters. The parties met for a resolution session on June 15, 2017

and were unable to reach an agreement. My final decision in this case is due by August

16, 2017.

The due process hearing was held before the undersigned impartial hearing

officer on July 31 and August 1, 2017 at the Office of Dispute Resolution in Washington,

D.C. The hearing, which was closed to the public, was recorded on an electronic audio

recording device. The Petitioner appeared in person and was represented by

PETITIONER’S COUNSEL and PETITIONER’S CO-COUNSEL. Respondent DCPS was

represented by DCPS’ COUNSEL and by LEA REPRESENTATIVE.

The Petitioner testified and called EDUCATIONAL CONSULTANT, TUTOR,

INVESTIGATOR, CLINICAL PSYCHOLOGIST and NONPUBLIC SCHOOL

COUNSELOR as additional witnesses. DCPS called SCHOOL SOCIAL WORKER,

SCHOOL PSYCHOLOGIST, ASSISTANT PRINCIPAL and SPECIALIZED

INSTRUCTION DIRECTOR as witnesses. Petitioner’s Exhibits P-1 through P-90 were

all admitted into evidence, with the exceptions of Exhibits P-17, P-35 and P-42 to which

DCPS’ objections were sustained. DCPS’ Exhibits R-1 through R-24 were admitted into

evidence without objection. Counsel for the respective parties made opening

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statements. Both parties made closing arguments. Neither party requested leave to file

a written closing.

JURISDICTION

The hearing officer has jurisdiction under 20 U.S.C. § 1415(f) and D.C. Regs. tit.

5-E, § 3029.

ISSUES AND RELIEF SOUGHT

The following issues for determination were certified in the June 15, 2017

Prehearing Order:

1. Did DCPS deny Student a FAPE by failing to identify as eligible forspecial education prior to June 2016?

2. Did DCPS deny Student a FAPE during the 2016-2017 school year becausethe June 15, 2016 IEP was not reasonably calculated to provideeducational benefit in that the specialized instruction and behavioralsupport services were inadequate, and the IEP team failed to provideStudent with an appropriate placement?

3. Did DCPS deny Student a FAPE during the 2016-2017 school year becausethe December 15, 2016 IEP was not reasonably calculated to provideeducational benefit in that the specialized instruction and behavioralsupport services were inadequate, and the IEP team failed to provideStudent with an appropriate placement?

4. Did DCPS denyAStudent a FAPE by failing to comprehensively evaluateStudent in all areas of suspected disability, including failing to timelyconduct an FBA, given the nature and severity of Student’s behaviors andabsenteeism and their interference with ability to access the academiccurriculum?

5. Is DCPS’ May 30, 2017 IEP inappropriate for Student because it lackssufficient Specialized Instruction and Behavioral Support Services, doesnot provide Extended School Year services, does not incorporate aBehavior Intervention Plan, and contains inappropriate annual goals andpresent levels of performance that are not correctly updated?

6. Did DCPS violate Petitioner’s procedural due process rights and fail toallow the Petitioner meaningful parent participation by failing to providePetitioner Student’s educational records in May 2016, failing to providethe Petitioner with a copy of DCPS’ proposed draft IEP prior to Student’s

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May 30, 2017 IEP meeting pursuant to D.C. Code § 38-2571.03, and failingto review the March 21, 2017 Independent FBA during the May 30, 2017IEP meeting?

For relief, the parent requests that the hearing officer,

a. Order DCPS to immediately place and fund Student’s placement in anappropriate full-time non-public therapeutic special education programwith transportation and related services, like NONPUBLIC SCHOOL;

b. Order DCPS within thirty days of Student’s placement in an appropriatefull-time non-public special education program, develop an appropriateIEP that includes specialized instruction in all academic classes; increasedrelated services, updated present levels of performance; baselines andgoals, ESY and increased, specific modifications and supports and

c. Order DCPS to provide appropriate compensatory education for thedenials of FAPE to Student since the beginning of the 2015-2016 academicyear.

FINDINGS OF FACT

After considering all of the evidence received at the due process hearing, as well

as the argument of counsel, this hearing officer’s findings of fact are as follows:

1. Student, an AGE youth, resides in the District of Columbia. Testimony of

Mother. As of the date of the due process hearing, Student was living in a shelter home.

Testimony of Educational Consultant. Student is eligible for special education under the

IDEA disability classification Specific Learning Disability (SLD). Exhibit R-20.

2. For the 2016-2017 school year, Student was enrolled in GRADE at CITY

SCHOOL 3. attended CITY SCHOOL 1 for grades. attended CITY

SCHOOL 2 for most of the 2013-2014, 2014-2015 and 2015-2016 school years.

Beginning in spring 2014, Student was enrolled in a public school in

Maryland. In early January 2015, Student moved back to the District and was

enrolled again in City School 2. Student was retained in grades , and and repeated

these grades. Testimony of Mother.

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3. Student was asked to leave City School 2 in the 2013-2014 school year due

to behavior problems. Exhibit R-3.

4. At City School 2, Student received failing grades in most courses for school

year 2013-2014 and the third term of school year 2014-2015 (Grades were not available

for the 4th term of that year.) Student’s final grades for school year 2015-2016 were

much improved, although received a D+ in history/geography and an Incomplete in

mathematics. Exhibit P-10.

5. At City School 2, Student received three out-of-school disciplinary

suspensions in school year 2013-2014. Exhibits P-43 through P-45. Student received

three out-of-school disciplinary suspensions in School year 2014-2015. Exhibits P-46

through P-48. (Student attended school in Maryland for the first half of the 2014-2015

school year.) Student received no out-of-school disciplinary suspensions in school year

2015-2016. Exhibit P-49.

6. Student was first referred to DCPS for evaluation for special education

eligibility in the spring of 2015. A psychoeducational evaluation had been conducted by

a D.C. Superior Court psychologist (the Court Psychologist) in October 2015. On April

25, 2016, an attorney from Petitioner’s Counsel’s office wrote Assistant Principal at City

School 2, forwarding the court-ordered psychological evaluation report, and requested

that Student be evaluated for special education eligibility. Exhibit R-1. Student’s family

questioned the validity of the low scores Student attained on Court Psychologist’s

assessment and requested City School 2 to reevaluate Student. The DCPS school

psychologist, SCHOOL PSYCHOLOGIST 1, reported on June 5, 2016 that Student was

reading at middle 3rd grade level and was performing at a 4th grade level in Math.

Cognitive testing indicated that cognitive functioning was in the Below Average

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range and verbal and memory skills were also in the Below Average range.

nonverbal skills fell in the Average range. On the Kaufman Tests of Achievement, 4th

Edition (KTEA-4), Student’s scores placed in the low to below average range in

Reading, Writing and Mathematics. School Psychologist 1 compared her testing results

to the strikingly lower achievement test results obtained by Court Psychologist, which

placed Student’s Reading and Writing in the Low range and Math in the Very Low

range. Exhibit P-4.

7. At an eligibility committee meeting on June 15, 2016 at City School 2,

Student was determined eligible for special education and related services under the

IDEA disability classification SLD. Exhibit R-6.

8. Student’s initial IEP was developed at City School 2 on June 15, 2016.

Mother and a grandparent attended the meeting. The IEP identified Mathematics,

Reading, Written Expression and Emotional, Social and Behavioral Development as

areas of concern for Student. The IEP team agreed that Student would receive 5 hours

per week of Specialized Instruction and 60 minutes per month of Behavioral Support

Services, all in the general education setting. Exhibit R-7.

9. In an apparent error, for Student’s Present Levels of Academic

Achievement and Functional Performance (PLOP’s), the June 15, 2016 IEP recited

Student’s cognitive and educational scores from the October 2015 psycho-educational

assessment conducted by Court Psychologist, instead of the more recent scores from

School Psychologist’s June 5, 2016 psychological report. For example, School

Psychologist 1 reported that Student’s Composite Intelligence Index (CIX) score, on the

Reynolds Intellectual Assessment Scales (RIAS), was 86 in the Below Average range.

However, on the June 15, 2016 IEP, Student’s FSIQ was reported to be in the Extremely

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Low range with a standard score of 69, as assessed by Court Psychologist using the

Wechsler Intelligence Scale for Children - Fifth Edition (WISC-V). Similarly, for

educational testing, School Psychologist 1 administered the Kaufman Test of

Educational Achievement, Third Edition (KTEA-3) and found that Student’s scores for

the Reading Composite, Math Composite and Written Language Composite were all in

the Below Average Range. However, it is reported on the June 15, 2016 IEP that

Student was administered the Woodcock-Johnson IV Tests of Achievement (WJ-IV) and

that scores for Broad Math cluster were in the Very Low Range for Broad Math, in

the Low Range for Basic Reading Skills and for Broad Written Language. The WJ-IV

had been administered by Court Psychologist in the fall of 2015. It appears that the IEP

draftsperson inserted the PLOP data from Court Psychologist’s fall 2015 report instead

of incorporating the significantly stronger scores reported by the DCPS psychologist in

her June 5, 2016 initial evaluation report. Exhibit R-6.

10. Student’s final grades for the 2015-2016 school year at City School 2 were

all C- or higher, except for a D+ in History/Geography, a D in Dance and F in Music.

Exhibit P-10.

11. Student matriculated to City School 3 for the 2016-2017 school year.

IEP was revised at City School 3 on December 15, 2016. At City School 3, the IEP team

carried over the out-of-date PLOP data from Student’s City School 2 IEP, including

using the cognitive and educational test scores from the fall 2015 Court Psychologist’s

report instead of the data from School Psychologist 1's June 5, 2017 psychological

evaluation report. The December 15, 2016 IEP team continued Student’s Specialized

Instruction Services at 5 hours per week in the general education setting. The IEP team

continued Behavioral Support Services at 60 minutes per week, but changed the setting

2 In this proceeding, Petitioner has not appealed any of the discipline measuresagainst Student.

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to outside general education. Exhibit R-12.

12. In the 2016-2017 school year at City School 3, Student would go to school,

but not attend class. Testimony of School Social Worker, Testimony of Mother. School

Social Worker would allow Student to come to see him every day in his office as a way to

get Student out of the hallways, but despite School Social Worker’s best efforts, Student

would either not go to classes or would walk out after class started. Testimony of

School Social Worker. As of March 8, 2017, Student had 38 reported days of unexcused

absences. Exhibit P-21. Student failed all of courses at City School 3, except for

obtaining D’s in Culinary Arts and Journalism. Exhibit P-15.

13. School Social Worker developed an Intervention Plan for Student in

October 2016 targeting Student’s nonattendance. The plan included a behavior contract

and schedule modifications. The Intervention Plan did not work. Exhibit R-11,

Testimony of School Social Worker.

14. Rather than conduct its own FBA of Student, on December 19, 2016, DCPS

authorized the parent to obtain an Independent Educational Evaluation (IEE) FBA at

public expense – which was the parent’s preference. Exhibits R-14, P-66. The parent’s

expert, Educational Consultant, did not complete the FBA until March 21, 2017

15. At City School 3, Student received four out-of-school disciplinary

suspensions in school year 2016-2017, including a 45-day suspension on March 7, 2017

for fighting with another student and destruction of school property. Exhibits P-53, 56,

58 and 62.2 As an interim alternative educational setting, apparently for the remainder

of the 2016-2017 school year, Student was assigned to CITY SCHOOL 4. Exhibit R-19.

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16. On April 18, 2017, School Psychologist 2 conducted a psychological

reevaluation of Student to determined if Specific Learning Disability (SLD) remained

the most appropriate disability classification for . The request was precipitated by

two disciplinary suspensions for fighting with a 3-month period. School Psychologist 2

administered the Wechsler Abbreviated Scales of Intelligence, Second Edition (WASI-

II). On this measure, Student’s general level of intellectual functioning was measured to

be in the Borderline Range of performance. These scores were similar to the cognitive

test results obtained by Court Psychologist in fall 2015, but lower than the cognitive

assessment scores obtained by School Psychologist 1 in spring 2016. School

Psychologist 2 also administered three subtests of the WJ-IV educational achievement

tests. Student’s score on the Passage Comprehension subtest was in the Low Range.

score on Applied Problems (math reasoning and concepts) was in the Low Range.

score on the Writing Samples subtest was in the Low Average Range for ability to

convey ideas and in the Limited to Average Range for proficiency. School Psychologist

reported that Student is a student with low general cognitive abilities, below age and

grade level academic skills and behavioral problems. She noted that Student has friends

and enjoys attending City School, but has major difficulty with arriving at school on

time, with attending all classes regularly and with disruptive and disrespectful behavior.

Student’s scores on social-emotional rating scales came out Average. The parent’s

responses on the behavior rating scales were “not very significant.” School Psychologist

2 concluded that Student continued to meet eligibility criteria for the SLD disability and

that Student did not appear to meet eligibility criteria as a student with an Emotional

Disturbance (ED) disability. Exhibit R-19.

17. City School convened an IEP team annual review meeting for Student on

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May 30, 2017. The team determined that Student remained eligible for special

education under the IDEA category SLD. Once again, the IEP team carried over the

outdated PLOP data from Student’s City School 2 IEP, including using the cognitive and

educational test scores from the fall 2015 Court Psychologist’s report instead of the data

from School Psychologist 1's June 5, 2017 psychological evaluation report or School

Psychologist 2's May 12, 2017 psychological evaluation report. The IEP team increased

Student’s Specialized Instruction from 5 hours per week to 10 hours per week, including

2 hours outside general education, and increased Behavioral Support Services from

60 minutes to 120 minutes per month. Mother and Petitioner’s Counsel attended the

IEP team meeting. They objected that the increase in Specialized Instruction was

insufficient to meet Student’s needs and argued for a more restrictive environment.

Exhibits R-20, R-21.

18. Nonpublic School is a private special education day school in suburban

Virginia. Its enrollment of 40 students in grades 3 through 12 includes students with

SLD, ED, Other Health Impairments, Autism Spectrum Disorder and other IDEA

disabilities. There are no non-disabled students. Class size at Student’s grade level is a

maximum of 10 students with a special education teacher and a teaching assistant.

Nonpublic School has a school-wide behavior system and a behavior support system

with two behavior managers and a supervisor. The school uses a positive behavior

reward system employing points and objectives. The school also has de-escalation

carrels and rooms with sensory supports to assist with de-escalation. Individual

counseling is provided for 30 minutes per week and group counseling is provided in

each classroom for 30 minutes per week. Nonpublic School holds a current Certificate

of Approval (COA) from the D.C. Office of the State Superintendent of Education

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(OSSE). The tuition for the 180-day school year is approximately $50,000. Testimony

of School Counselor.

19. Nonpublic School’s program director met with Student, Mother and

Petitioner’s Counsel to interview Student and to give a tour of the school. Student said

really liked the school and wanted to go there. Student has been accepted by

Nonpublic School for the 2017-2018 school year. Testimony of School Counselor.

CONCLUSIONS OF LAW

Based upon the above findings of fact and argument of counsel, as well as this

hearing officer’s own legal research, the conclusions of law of this hearing officer are as

follows:

Burden of Proof

As provided in the D.C. Special Education Student Rights Act of 2014, the party

who filed for the due process hearing, the Petitioner in this case, shall bear the burden of

production and the burden of persuasion, except that where there is a dispute about the

appropriateness of the student’s IEP or placement, or of the program or placement

proposed by DCPS, the District shall hold the burden of persuasion on the

appropriateness of the existing or proposed program or placement; provided that the

Petitioner shall retain the burden of production and shall establish a prima facie case

before the burden of persuasion falls on the District. The burden of persuasion shall be

met by a preponderance of the evidence. See D.C. Code § 38-2571.03(6).

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Analysis

a.

– Did DCPS deny Student a FAPE by failing to identify as eligiblefor special education prior to June 2016?

Student was first determined eligible for special education and related services at

an eligibility committee meeting on June 15, 2016 at City School 2. Petitioner, through

counsel, contends that Student should have been evaluated by DCPS and determined

eligible by the end of his 2014-2015 school year. I agree.

Under its child find mandate, “the IDEA imposes an affirmative obligation on

school systems to ‘ensure that all children with disabilities residing in the State . . .

regardless of the severity of their disabilities, and who are in need of special education

and related services, are identified, located, and evaluated.’” Reid v. District of

Columbia, 401 F.3d 516, 519 (D.C.Cir. 2005) (citing 20 U.S.C. § 1412(a)(3)(A)). “School

districts may not ignore disabled students’ needs, nor may they await parental demands

before providing special instruction.” Reid at 518.

Student has a long history of academic failure. attended City School 1 from

through grades and in those school years, was retained in grade and

grade. started at City School 2 in grade and was asked to leave because of

behavior issues. attended school in Maryland from April

2014 through January 2015 and, even though repeated grade, still failed most

of courses. After Student returned to City School 2 in January 2015, again failed

most of courses for the school year. Despite this troubling academic history, DCPS

did not conduct its initial eligibility evaluation of Student until May 2016 and only then

when Mother provided City School 2 the fall 2015 psycho-educational assessment made

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by Court Psychologist, which reported diagnoses of Adjustment disorder with

disturbance of emotions and conduct and Borderline Intellectual Functioning. When

DCPS’ School Psychologist 1 conducted her psychological evaluation in spring 2016, she

confirmed that Student was functioning some three to four years below grade level

and that Student should qualify for special education as a Student with an SLD. On

June 15, 2016, the City School 2 eligibility team determined that Student was eligible for

special education as a student with an SLD.

A local education agency’s (LEA)s duty to conduct an initial evaluation is

triggered when the LEA has reason to suspect a disability and reason to suspect that

special education services may be needed to address that disability. See Board of

Education of Fayette County v. L.M., 45 IDELR 95 (E.D.Ky. 2006). “A suspicion

connotes a relatively low threshold.” Id. A state or LEA “shall be deemed to have

knowledge that a child is a child with a disability if [among other things] . . . the

behavior or performance of the child demonstrates the need for such services.” Dep’t of

Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001) (citing

20 U.S.C. § 1415(k)(8)(B)(ii)). In this case, by the end of the 2014-2015 school year,

Student had been retained in , and grades. failed most courses when

enrolled in Maryland schools and after returned to City

School 2 in January 2015. I find that Petitioner has met her burden of persuasion that

by the end of the 2014-2015 school year, DCPS had ample reason to suspect that Student

had an IDEA disability, which triggered the District’s duty to conduct an initial eligibility

evaluation. Had DCPS conducted its evaluation by the end of the 2014-2015 school

year, in all likelihood, DCPS would have confirmed that Student required special

education as a child with an SLD disability and Student would have been provided an

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IEP for special education and related services a year sooner. I find that DCPS’ failure to

initiate an eligibility evaluation of Student until receiving a request from the parent in

spring 2016 violated the District’s child-find obligations and denied Student a FAPE.

b.

– Did DCPS denyAStudent a FAPE by failing to comprehensively evaluateStudent in all areas of suspected disability, including failing to timely conduct anFBA, given the nature and severity of Student’s behaviors and absenteeism andtheir interference with ability to access the academic curriculum?

As explained by Petitioner’s Counsel in closing argument, Petitioner alleges that

DCPS failed to comprehensively evaluate Student because (1) it did not conduct social-

emotional assessment before April 2016 and (2) by not conducting an FBA. The IDEA

requires that a student suspected of having a disability be assessed in all areas related to

the suspected disability, including, if appropriate, emotional status. 34 CFR § 304(c)(4).

In the previous section of this decision, I addressed DCPS’ failure to evaluate Student

before April 2016. With regard to Student’s need for an FBA, the IDEA requires, in the

case of a student whose behavior impedes the student’s learning or that of others, that

the IEP team consider the use of positive behavioral interventions and supports, and

other strategies, to address that behavior. See 34 CFR § 300.324(a)(2)(i). An FBA is

“essential to addressing a child’s behavioral difficulties, and, as such, it plays an integral

role in the development of an IEP.” Harris v. District of Columbia, 561 F.Supp.2d 63,

68 (D.D.C.2008). An LEA’s failure to complete an FBA and BIP, when warranted, will

constitute a denial of a FAPE. See, e.g., Long v. District of Columbia, 780 F.Supp.2d

49, 61 (D.D.C.2011). Student’s persistent failure to attend class after enrolling in City

School 3 and the other aspects of worsening behavior in the fall of 2016 were

obviously impeding learning and an FBA was warranted. Rather than conduct its

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own FBA, on December 19, 2016, DCPS authorized the parent to obtain an IEE FBA at

public expense, which was the parent’s preference. The parent’s expert, Educational

Consultant did not complete the independent FBA until March 21, 2017 but this delay

was outside of DCPS’ control. I find that Petitioner did not meet her burden of

persuasion that DCPS denied Student a FAPE by not timely conducting an FBA.

c.

– Did DCPS deny Student a FAPE during the 2016A2017 school year becausethe June 15, 2016 IEP was not reasonably calculated to provideeducational benefit in that the specialized instruction and behavioralsupport services were inadequate, and the IEP team failed to provideStudent with an appropriate placement?

– Did DCPS deny Student a FAPE during the 2016-2017 school year becausethe December 15, 2016 IEP was not reasonably calculated to provideeducational benefit in that the specialized instruction and behavioralsupport services were inadequate, and the IEP team failed to provideStudent with an appropriate placement?

– Is DCPS’ May 30, 2017 IEP inappropriate for Student because it lackssufficient Specialized Instruction and Behavioral Support services, doesnot provide Extended School Year services, does not incorporate aBehavior Intervention Plan, and contains inappropriate annual goals andpresent levels of performance that are not correctly updated?

Student was determined eligible for special education and related services in

June 2016 on the basis of SLD disability. The DCPS IEP teams, meeting on June 15,

2016 and December 15, 2016, developed IEPs for Student with minimal special

education services, providing 5 hours per week of Specialized Instruction in the general

education classroom and 60 minutes per month of Behavioral Support Services.

Petitioner contends that these services were inadequate. DCPS has the burden of

persuasion as to the appropriateness of these IEPs.

In Moradnejad v. District of Columbia, 177 F. Supp. 3d 260 (D.D.C. 2016), the

Court adopted the Report and Recommendation of U.S. Magistrate Judge G. Michael

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Harvey, which explained how a court or a hearing officer must assess an IEP:

The Supreme Court explained in [Bd. of Educ. v. Rowley, 458 U.S. 176,102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)] that a court’s assessment of an IEPinvolves two inquiries:

First, has the State complied with the procedures set forth inthe [IDEA]? And second, is the [IEP] developed through the[IDEA’s] procedures reasonably calculated to enable thechild to receive educational benefits? If these requirementsare met, the State has complied with the obligations imposedby Congress and the courts can require no more.

Moradnejad at 274-75. In Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,

137 S.Ct. 988 (2017), the U.S. Supreme Court elaborated on the standard, first

enunciated in Rowley, supra, for what constitutes an appropriate IEP:

To meet its substantive obligation under the IDEA, a school must offer anIEP reasonably calculated to enable a child to make progress appropriatein light of the child’s circumstances. Endrew F., 137 S.Ct. at 999. . . . The‘reasonably calculated’ qualification reflects a recognition that crafting anappropriate program of education requires a prospective judgment byschool officials. Id. . . . Any review of an IEP must appreciate that thequestion is whether the IEP is reasonable, not whether the court regards itas ideal. Id. (emphasis in original.) . . . The IEP must aim to enable thechild to make progress. . . . [T]he essential function of an IEP is to set outa plan for pursuing academic and functional advancement. Id. . . . A focuson the particular child is at the core of the IDEA. The instruction offeredmust be “specially designed” to meet a child’s “unique needs” through an“individualized education program.” An IEP is not a form document. It isconstructed only after careful consideration of the child’s present levels ofachievement, disability and potential for growth. Id. (emphasis inoriginal.) . . . When a child is fully integrated in the regular classroom, asthe Act prefers, what that typically means is providing a level of instructionreasonably calculated to permit advancement through the generalcurriculum. Id., 137 S.Ct. at 1000. . . . [For a child who is not fullyintegrated in the regular classroom and not able to make grade-leveladvancement] his educational program must be appropriately ambitiousin light of his circumstances, just as advancement from grade to grade isappropriately ambitious for most children in the regular classroom. Thegoals may differ, but every child should have the chance to meetchallenging objectives. Id. . . . A reviewing court may fairly expect [school]authorities to be able to offer a cogent and responsive explanation for theirdecisions that shows the IEP is reasonably calculated to enable the child tomake progress appropriate in light of his circumstances. Id., 137 S.Ct. at

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1002.

“The adequacy of an IEP can be measured only at the time it is formulated, not in

hindsight.” District of Columbia v. Walker, 109 F. Supp. 3d 58, 66 (D.D.C. 2015) (citing

S.S. ex rel. Shank v. Howard Road Academy, 585 F.Supp.2d 56, 66 (D.D.C.2008).

With regard to the June 15, 2016 and December 15, 2016 IEPs, Petitioner has not

alleged any procedural violation claims. Therefore, I turn to the second prong of the

Rowley/Endrew F. inquiry. Were these IEPs reasonably calculated to enable Student to

make progress appropriate in light of circumstances? In light of the information

available to June 15, 2016 IEP team when Student attended City School 2, I find that the

initial IEP, at the time it was formulated, was appropriate. School Psychologist 1

reported in her June 5, 2016 initial psychological evaluation that Student’s cognitive

functioning was in the Below Average range, verbal and memory skills were in the

Below Average range and nonverbal skills fell in the Average range. On educational

testing, Student’s scores placed in the low to below average range in reading,

writing and mathematics. Petitioner did not challenge this assessment. Student’s final

grades for the 2015-2016 school year at City School 2 were all C- or higher, except for a

D+ in History/Geography, a D in Dance and F in Music. DCPS’ expert, Assistant

Principal, testified that at City School 2, Student was doing fine, before receiving an IEP,

with push-in support from a social worker in the general education classroom. She

testified that in the 2015-2016 school year, even without an IEP in place, Student tried

really hard and had made significant growth. Mother testified that Student responded

to a behavior contract instituted by City School 2, did fairly well and managed to attend

all of classes. Petitioner’s expert, Educational Consultant, opined that the special

education and behavioral support services in both the June 15, 2016 IEP and the

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December 15, 2016 IEP were not appropriate in light of Student’s significant learning

difficulties. However, with respect to the first IEP, Educational Consultant conceded on

cross-examination that Student had showed progress in academics and behavior in the

2015-2016 school year. On this evidence, I conclude that DCPS has met its burden of

persuasion that, at the time the June 15, 2016 IEP was formulated, it was reasonably

calculated to enable Student to make appropriate progress.

Student matriculated to City School 3 for the 2016-2017 school year. As Mother

testified, City School 3 has not been a good school for Student. has been suspended

multiple times and despite the best efforts of staff, did not attend class. As a result,

Student failed most of classes for the first two terms of the school year. Certainly,

Student’s circumstances had very much changed by the next IEP team meeting on

December 15, 2016. Notwithstanding, the City School 3 IEP team made no changes to

Student’s minimal special education and related services except to change the setting for

Behavioral Support Services to outside general education. Further, the IEP team did not

update Student’s academic PLOP’s, but continued to use the outdated cognitive and

achievement test scores from the fall 2015 Court Psychologist’s psychological evaluation.

None of DCPS’ witnesses rebutted Educational Consultant’s opinion that by the time of

the December 15, 2016 IEP team meeting, Student’s behavior had worsened and that the

December 15, 2016 IEP was not appropriate. I find that DCPS has not met its burden of

persuasion that the December 15, 2016 IEP was reasonably calculated to enable Student

to make progress appropriate in light of circumstances.

Student’s IEP was most recently updated at a City School 3 IEP team meeting on

May 30, 2017. By this time, Student was failing almost all of courses. had been

suspended multiple times and was then “serving” a 45 day disciplinary suspension in an

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alternative educational setting. Before the meeting, Student had been recently

reevaluated by School Psychologist 2, who reported that Student’s general level of

intellectual functioning tested in the Borderline Range and achievement scores on

the parts of the WJ-IV achievement tests she administered were in the Low Range for

Reading and Mathematics.

The May 30, 2017 IEP team increased Student’s Specialized Instruction from 5

hours per week to 10 hours per week, including 2 hours outside general education and

increased Student’s Behavioral Support Services from 60 minutes to 120 minutes per

month. Petitioner’s expert, Educational Consultant, testified credibly that these special

education services were not appropriate for a student who, at that point, was not

functioning at all in general education and that the 120 minutes per month of behavioral

support services were not adequate for a student with severe behavior challenges

and worsening class attendance. DCPS’ expert, School Psychologist 2, testified that she

thought the 10 hours per week of Specialized Instruction would work for Student and

that the proposed Behavioral Support Services were sufficient. However, in light of

Student’s record at City School 3 in the 2016-2017 school year and the updated data

from School Psychologist 2's psychological reevaluation, I conclude that DCPS has not

met its burden of persuasion that the special education and related services in the May

30, 2017 IEP were reasonably calculated to enable Student to make progress in light of

current circumstances.

Petitioner also contends that the May 30, 2017 IEP is not appropriate because it

lacks Extended School Year services, does not incorporate a Behavior Intervention Plan,

and contains inappropriate annual goals and present levels of performance which have

not been updated. As explained above, the present levels of performance are based on

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data from the fall 2015 court ordered psychological assessment and are out of date.

Therefore the PLOP’s and the annual goals based on the PLOP’s must be updated.

Specialized Instruction Director testified that a Behavior Intervention Plan (BIP) was

not developed since the IEP team lacked information about how Student acted in the

classroom because Student had not attended classes with any regularity at City School 3.

The IDEA does not require that a BIP be incorporated into a child’s IEP. See School Bd.

School Dist. No. 11 v. Renollett, 440 F.3d 1007, 1011 (8th Cir. 2006). I find that the

evidence is persuasive that until Student returns to the classroom, a BIP would be of no

benefit. There was no credible evidence offered that Student requires ESY services. See

S.S. ex rel. Shank v. Howard Rd. Acad., 585 F. Supp. 2d 56 (D.D.C. 2008). (“ESY

Services are only necessary to a FAPE when the benefits a disabled child gains during a

regular school year will be significantly jeopardized if he is not provided with an

educational program during the summer months.” Id. at 68-69, adopting standard from

MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 537–38 (4th Cir.2002)).

d.

– Did DCPS violate Petitioner’s procedural due process rights and fail toallow the Petitioner meaningful parent participation by failing to providePetitioner Student’s educational records in May 2016, failing to provide thePetitioner with a copy of DCPS’ proposed draft IEP prior to Student’s May 30,2017 IEP meeting, pursuant to D.C. Code § 38-2571.03, and failing to review theMarch 21, 2017 Independent FBA during the May 30, 2017 IEP meeting?

Petitioner also contends that DCPS failed to comply with the IDEA’s procedural

requirements at the time of the May 30, 2017 IEP team meeting. See Rowley, supra,

458 U.S. at 205. In closing argument, Petitioner’s Counsel explained that the primary

concern is that at the May 20, 2017 IEP review meeting, the IEP team did not review

Educational Consultant’s March 21, 2017 Independent Educational Evaluation

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Functional Behavioral Assessment (IEE FBA). The IDEA regulations require that an

IEP Team must consider, inter alia, the results of the initial or most recent evaluation of

the child. See 34 CFR § 300.324(a). Further, if the parent obtains an independent

educational evaluation at public expense, the results of the evaluation must be

considered by the public agency. See 34 CFR § 300.502(c)(1). Here, the IEE FBA was

summarized in School Psychologist 2's May 12, 2017 reevaluation of Student, but it was

not reviewed as a separate document at the IEP team meeting. School Psychologist 2

explained at the IEP meeting that the IEE FBA had limited information because due to

Student’s absences, there was no observation at City School 3 and little input from City

School 3 teachers. She recommended that a more in-depth FBA be conducted

(presumably in the following school year.) I find that Petitioner has not met her burden

of persuasion that DCPS violated the IDEA either by failing to consider the IEE FBA or

by including a summary of the FBA in the psychological reevaluation instead of

discussing it separately at the IEP meeting.

Remedy

In this decision, I have concluded that DCPS denied Student a FAPE by failing to

assess for special education eligibility by the end of the 2014-2015 school year and

by not offering appropriate IEPs at either the December 15, 2016 or the May 30, 2017

IEP meetings. For relief, the parent requests that DCPS be ordered to place Student at

Nonpublic School for the 2017-2018 school year and to provide Student compensatory

education. As to the prospective placement request, I find that DCPS has failed to offer

Student a suitable educational placement for the 2017-2018 school year. Student made

no progress at City School 3 in the last school year and behavior worsened over the

school year to the point where was not attending class and was involved in more

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serious code of conduct violations. When asked how the May 30, 2017 IEP would

address Student’s failures during the prior year, Specialized Instruction Director

testified candidly that was a “great question.” She did not provide a credible answer.

Educational Consultant testified credibly Student now requires a full-time

comprehensive school which provides behavior services intertwined with its academic

instruction for the entire school day. After looking at the program at Nonpublic School,

he opined that this private school would be suitable for Student. As of the due process

hearing date, DCPS had not identified a school location where full-day behavior support

services would be provided for Student. On these facts, I find that it is appropriate to

award Student private placement as prospective relief. See Hill v. District of Columbia,

No. 14-CV-1893, 2016 WL 4506972 (D.D.C. Aug. 26, 2016); Q.C-C. v. District of

Columbia, 164 F. Supp. 3d 35, 52 (D.D.C. 2016) (Where private school is the only

potential placement in the record that could satisfy student’s needs, an order to fund

nonpublic placement is warranted.)

In Branham v. Government of the Dist. of Columbia, 427 F.3d 7 (D.C. Cir.

2005), the D.C. Circuit Court of Appeals set forth a set of considerations “relevant” to

determining whether a private school is appropriate for a particular student, including

the nature and severity of the student’s disability, the student’s specialized educational

needs, the link between those needs and the services offered by the private school, the

placement’s cost, and the extent to which the placement represents the least restrictive

educational environment. Id. at 12. Pursuant to the Branham guidance, I will address

each of these considerations in turn.

a. Nature and Severity of Student’s Disability

Student is diagnosed with a Specific Learning Disability. According to the most

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recent DCPS psychological evaluation, Student has borderline intellectual functioning

and tested in the Low Range in Mathematics and Reading achievement. Except for

written language, Student was performing at a grade level 5 to 6 years below actual

grade level, even though was previously retained in three grades. Student’s behavior

in school has declined to the point that does not go to classes and is involved in

frequent, serious, conduct violations.

b. Student’s Specialized Educational Needs

According to the credible opinion of Educational Consultant, Student needs a

full-time placement in a special education program that provides behavior intervention

services throughout the school day.

c. Link between Student’s Needs and the Services Offered by NonpublicSchool

Nonpublic School is a private special education day school with an enrollment of

only 40 students with SLD, ED, Other Health Impairments, Autism Spectrum Disorder

and other IDEA disabilities. Class size at Student’s grade level is a maximum of 10

students with a special education teacher and a teaching assistant. Nonpublic School

has a school-wide behavior support system with two behavior managers and a

supervisor. The school uses a positive behavior reward system employing points and

objectives. The school also has de-escalation carrels and rooms with sensory supports

to assist with de-escalation. Individual counseling is provided for 30 minutes per week

and group counseling is provided in each classroom for 30 minutes per week.

d. Cost of Placement at Nonpublic School

The annual tuition at Nonpublic School is approximately $50,000 per year.

Nonpublic School has a current certificate of approval (COA) from the D.C. Office of the

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State Superintendent of Education (OSSE). DCPS has not shown that Nonpublic

School’s annual tuition cost is out of line with other approved schools for students with

similar disabilities.

e. Least Restrictive Environment

The IDEA contemplates a continuum of educational placements to meet the

needs of students with disabilities. Depending on the nature and severity of his

disability, a student may be instructed in regular classes, special classes, special

schools, at the home, or in hospitals and institutions. See 5E DCMR § 3012, 20 U.S.C. §

1412(a)(5), 34 CFR § 300.115. The IDEA requires that students with disabilities be

placed in the “least restrictive environment” so that they can be educated in an

integrated setting with students who are not disabled to the maximum extent

appropriate. See, e.g., Smith v. District of Columbia, 846 F.Supp.2d 197, 200 (D.D.C.

2012). DCPS’ experts testified that Student enjoys the company of nondisabled

friends at City School 3. While that is presumably true, Student is not attending class

and is not making educational progress. Moreover behavior has worsened since

attended City School. The least restrictive setting factor in Branham is of less

importance than the IDEA’s “primary goal of providing disabled students with an

appropriate education.” See Q.C-C. v. District of Columbia, 164 F. Supp. 3d 35, 55

(D.D.C. 2016) (quoting Carter By & Through Carter v. Florence Cty. Sch. Dist. Four,

950 F.2d 156, 160 (4th Cir. 1991), aff’d, 510 U.S. 7, 114 S. Ct. 361, 126 L. Ed. 2d 284

(1993). I find that at this time, a more restrictive setting for Student is warranted.

Considering all of the above factors, I conclude that Petitioner has established

that Nonpublic School is an appropriate placement for Student for the 2017-2018

school year and I will order DCPS to fund Student’s placement there.

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Compensatory Education

The Petitioner also requests that Student be awarded compensatory education

for the past denials of FAPE in this case. In this decision, I have found that Student has

been denied a FAPE by not being determined eligible for special education by the end

of the 2014-2015 school year and by not being provided appropriate IEPs beginning

with the December 15, 2016 IEP team meeting. The D.C. Circuit Court of Appeals

explained the compensatory education remedy in its decision in B.D. v. District of

Columbia, 817 F.3d 792 (D.C. Cir. 2016):

When a hearing officer or district court concludes that a school districthas failed to provide a student with a FAPE, it has “broad discretion tofashion an appropriate remedy,” which can go beyond prospectivelyproviding a FAPE, and can include compensatory education. Boose v.District of Columbia, 786 F.3d 1054, 1056 (D.C.Cir.2015) (internalquotation marks omitted). As we held in Reid ex rel. Reid v. District ofColumbia, an award of compensatory education “must be reasonablycalculated to provide the educational benefits that likely would haveaccrued from special education services the school district should havesupplied in the first place.” 401 F.3d at 524. In other words,compensatory education aims to put a student like B.D. in the position hewould be in absent the FAPE denial. An appropriate compensatoryeducation award must “rely on individualized assessments,” and theequitable and flexible nature of the remedy “will produce different resultsin different cases depending on the child’s needs.” Id. In some cases, theaward may consist of “only short, intensive compensatory programstargeted at specific problems or deficiencies,” while in others the studentmay require “extended programs, perhaps even exceeding hour-for-hourreplacement of time spent without FAPE.” Id. To fully compensate astudent, the award must seek not only to undo the FAPE denial’saffirmative harm, but also to compensate for lost progress that thestudent would have made.

B.D., 817 F.3d at 797–98. Petitioner’s expert, Educational Consultant, opined that if

Student had been provided appropriate special education and behavior interventions

over the last two years, he would expect Student to be only 2 or 3 years behind

current grade level. To make up for the harm and lost progress from the denials of

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FAPE, Educational Consultant recommended that Student be awarded 50 hours of

academic tutoring and 30 hours of counseling targeted to make Student available for

instruction.

I found Educational Consultant to be knowledgeable about the purposes of the

compensatory education remedy and well-informed as to Student’s needs resulting

from the denials of FAPE in this case. Educational Consultant met Student at

shelter home and observed at City School 4. He also visited City School 3 to

observe Student, but Student was not at school that day. Educational Consultant was

able to speak to school staff about Student. Educational Consultant also revisited

Nonpublic School, where he had worked early in his career. I conclude that

Educational Consultant’s proposed compensatory education award is “reasonably

calculated to provide the educational benefits that likely would have accrued from

special education services” DCPS should have provided Student beginning at the end of

the 2014-2015 school year. See T.P. v. District of Columbia, 736 F. Supp. 2d 240, 247

(D.D.C. 2010). I will order DCPS to fund the proposed award.

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ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby

ORDERED:

1. Within five business days of the date of this order, DCPS shall ensure thatfunding authorization is issued for Student to enroll in Nonpublic School,with transportation, for the 2017-2018 Nonpublic School school year;

2. Within 15 business days of the date of this order, DCPS shall ensure thatStudent’s IEP team is convened to review and revise, as appropriate,Student’s IEP and educational placement for the 2017-2018 school year inconformity with 34 CFR § 300.320, et seq. and with this decision. DCPSshall ensure that the IEP annual goals and present levels of performanceare accurately updated to incorporate current cognitive and educationdata from Student’s psychological assessments as well as the most recentschool academic and behavior data;

3. As compensatory education for the denials of FAPE in this case,beginning not later than 60 business days from the date of this decision(to allow sufficient time for Student to acclimate to Nonpublic School),DCPS shall provide Student 50 hours of academic tutoring and 30 hoursof counseling by a qualified DCPS or third party tutor or provider and

4. All other relief requested by the Petitioner herein is denied.

Date: August 16, 2017 s/ Peter B. Vaden Peter B. Vaden, Hearing Officer

NOTICE OF RIGHT TO APPEAL

This is the final administrative decision in this matter. Any party aggrieved bythis Hearing Officer Determination may bring a civil action in any state court ofcompetent jurisdiction or in a District Court of the United States without regard to theamount in controversy within ninety (90) days from the date of the Hearing OfficerDetermination in accordance with 20 U.S.C. § 1415(i).

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cc: Counsel of RecordOffice of Dispute ResolutionOSSE Division of Specialized EducationDCPS Resolution Team